UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4115
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DWIGHT WILLIAM MARTIN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00221-TDS-1)
Submitted: July 30, 2012 Decided: August 2, 2012
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark Everette Edwards, EDWARDS & TRENKLE, PLLC, Durham, North
Carolina, for Appellant. Clifton Thomas Barrett, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwight William Martin was originally sentenced to 160
months for: possession with intent to distribute Oxycodone, 21
U.S.C. § 841(a)(1) (2006) (Count One); possession of a firearm
by a convicted felon, 18 U.S.C. § 922(g)(1) (2006) (Count Four);
and possession of a stolen firearm, 18 U.S.C. § 922(j) (2006)
(Count Five). We vacated the sentence and remanded to the
district court for consideration of the impact of United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), on
Martin’s sentence. On remand, the district court granted the
United States’ motion to dismiss Count Four. Martin was
resentenced on the remaining two counts to concurrent
twenty-eight-month sentences and a three-year term of supervised
release.
Martin appeals. Counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
claiming that the term of supervised release is unreasonable but
stating that there are no meritorious issues for review. Martin
was advised of his right to file a pro se supplemental brief but
has not filed such a brief. We affirm.
I
We review a sentence for reasonableness, applying an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
2
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of the sentence. Id.;
see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
We first decide whether the district court correctly calculated
the defendant’s advisory Guidelines range, considered the 18
U.S.C. § 3553(a) (2006) factors, analyzed the arguments
presented by the parties, and sufficiently explained the
selected sentence. Id. at 575-76; see United States v. Carter,
564 F.3d 325, 330 (4th Cir. 2009). If the sentence is free of
significant procedural error, we then review the substantive
reasonableness of the sentence. Lynn, 592 F.3d at 575.
Because Martin did not contend in the district court
that the term of supervised release was unreasonable, our review
of the claim is for plain error. Id. at 577. To establish
plain error, a defendant must show that: (1) an error occurred;
(2) the error was plain; and (3) the error affected his
substantial rights. Id. Even if these conditions are
satisfied, we may exercise our discretion to notice the error
only if the error “seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.” United States v.
Olano, 507 U.S. 725, 732 (1993) (internal quotation marks
omitted).
For the drug offense, Martin was statutorily subject
to a supervised release term of “at least three years.” See 21
3
U.S.C. § 841(b)(1)(C) (2006). Because the § 922(j) offense was
a Class C felony, see 18 U.S.C. § 924(a)(2) (2006), 18 U.S.C.
§ 3559(a)(3) (2006), Martin was subject to a supervised release
term of “not more than three years.” See 18 U.S.C. § 3583(b)(2)
(2006). Martin acknowledged in his plea agreement that these
were the applicable supervised release terms.
The drug offense also was a Class C felony. Under the
Guideline in effect at the time, the recommended term of
supervised release for Class C felonies was at least two years
but not more than three years. See U.S. Sentencing Guidelines
Manual § 5D1.2(a)(2) (2008).
We conclude that the three-year term of supervised
release is procedurally and substantively reasonable. It falls
within the properly calculated Guidelines range. The district
court considered the applicable 18 U.S.C. § 3553(a) sentencing
factors, see 18 U.S.C. § 3583(c) (2006), as well as the
arguments presented at sentencing. The court sufficiently
explained the chosen sentence.* Martin has not rebutted the
presumption that his within-Guidelines sentence is reasonable.
*
In imposing sentence, the court remarked on Martin’s
possession of two firearms in connection with his drug dealing,
his having been convicted of eluding arrest, and the need to
both protect the public and to deter criminal behavior.
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See United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008).
There was no plain error.
II
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm. This court requires that counsel inform
Martin, in writing, of the right to petition the Supreme Court
of the United States for further review. If Martin requests
that a petition be filed, but counsel believes that such a
petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on Martin.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
5